We see a commendation in similar terms from Professor Donal Byard of New York in the Irish Times (HERE).

Now we need only await the usual sullen silence by way of response.

This blog has referred (July 2007) to one of them.

That post referred to the fact that the UK (and Ireland, consequently) formerly had that very remedy and allowed it to fall into disuse.

It is now proposed to revive it in the UK.

Another good idea that would have stopped Charles J. Haughey, deceased leader of Fianna Fail, from getting inexplicably rich, is to be found in the laws of many former UK dominions.

Hong Kong’s version is found in the Prevention of Bribery Ordinance. It provides;

“10. (1) Any person who, being or having been a prescribed
officer –

(a) maintains a standard of living above that which is
commensurate with his present or past official
emoluments; or

(b) is in control of pecuniary resources or property
disproportionate to his present or past official
emoluments,

shall, unless he gives a satisfactory explanation to the court as to
how he was able to maintain such a standard of living or how such
pecuniary resources or property came under his control, be guilty of
an offence.”

(The definition of “prescribed officer” is critical; we are not after the dog-catcher).

A False Claim Act is, however, the superior remedy; it applies to private corruption and to public corruption; it promotes the disclosure of wrongdoing by witnesses; it acts as a disincentive to crime (by making it dangerous to undertake).

It is not helped by the fact that the law relating to corruption in Ireland is controversial. It is strewn over several pieces of legislation and has been criticized on a regular basis by the OECD expressly for that reason.

Two weapons in the State’s armoury were brought in by Britain (still in force in the UK), (The Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Act 1916) and are old. They are also inadequate. (The 1916 Act does not apply to employers: who, but employers, will fund the bribery?).

Ireland ratified the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions but, like many others, has dragged its heels in actually acting on its obligations.

In 2008 the OECD reported:

“In particular, the Working Group is disappointed that Ireland did not seize the opportunity of the Prevention of Corruption (Amendment) Bill 2008 to act upon the Phase 2 recommendations to consolidate and harmonise the two separate foreign bribery offences in the Prevention of Corruption (Amendment) Act 2001 and the Criminal Justice (Theft and Fraud Offences) Act 2001. The Group therefore recommends, as it did in 2007, that Ireland act on this issue as a matter of priority. It urges Ireland to pursue its declared intent to make changes to the 2008 Bill in order to achieve greater consistency between the two statutes, and consolidate at the first possible opportunity the corruption offences into a single piece of legislation. In addition, the Group continues to recommend that Ireland adopt on a high priority basis appropriate legislation to achieve effective corporate liability for foreign bribery.”

The Minister for Justice etc. welcomed this report, congratulating some civil servants, in effect, for meeting regularly to keep under review Ireland’s continuing default.

This is not academic stuff. See HERE.

And what of the, inadequate and insufficient, Prevention of Corruption (Amendment) Bill 2008?

It’s not even in sight.

If this happened in Ireland the employee would be guilty of an offence under The Public Bodies Corrupt Practices Act 1889, as extended by The Prevention of Corruption Act 1916.

The payment is a bribe.

One of the most influential ideas in Ireland is the belief that the State is superior to the citizen. This idea does not have universal acceptance, but it has a very strong grip on the persons controlling public administration. It is all the stronger for being an assumed truth and never referred to, let alone justified.

The fact that the Irish Constitution contains, and is professed to contain, provisions intended to safeguard the citizen from abuses by the State or its agents, does nothing, it would appear, to attenuate the Statist belief.

Historically, the Statist view is most strongly associated with Germany. Arguably its traditional or original German proponents hold the view as a considered philosophical position. They readily express and defend their ideas of the precedence of the State over the citizen.

It is a matter of surprise that such an idea would find root in Ireland, but its home in public administration suggests its attraction; it appeals to politicians in office and public administrators generally. The exercise of power is rarely if ever a pure act. The administrator invests his/her personality into the decision or act (and judges the fortune of his/her career thereby). Any opposition is resented. Any abstract idea that belittles or diminishes the status of the citizen is welcomed. It vindicates the continued deployment of power even in the face of substantial opposition. In the balancing of citizen and State rights, the balance is not affected by opposition measured by numbers; after all, numbers cannot make what is wrong, right.

Ireland inherited from the UK a perception that the traditional marginal role of the police in the UK (and Ireland) was superior to the Napoleonic system, seen in modern times in mainland European countries in the vestige requiring strangers to report in to the local police station.

In Italy its most ironic manifestation is the absence of internet hotspots or wifi zones on the terms found in Ireland, the UK and the US – free. In Italy it is necessary to produce a passport to use an internet shop; to join a wifi network or, effectively, to use a hotspot.

Benito Mussolini’s villa in Rome was Villa Torlonia on Via Nomentana. Reputedly its garden is a good reception point for the principal wifi network of the city. But reception is available only on terms Mussolini would have understood; by the grace of the Italian State.

While that is not the situation in Ireland, we still limit the ability of the citizen to challenge the State. The principal mechanism of limitation is Order 84 of the Rules of the Superior Courts.

Mussolini would have understood and approved that.

I am not alone in my perception as can be seen HERE

It is a social good that the faults in the Tunnel (and more importantly, any attempt to ignore or conceal those faults) should become public.

Prime Time did not identify the source of the information disclosed in its TV programme. There is no need; that information could only come from within Transroute (or, possibly, but unlikely, NRA). Transroute [ironically its website is "under construction"] has, since the airing of the Prime Time programme, recognized SIPTU as the representative of Transroute’s employees working on the Tunnel. In short, the Prime Time insider/source is a Transroute employee, a member of SIPTU and a whistleblower.

The Government is formally committed to protection of whistleblowers but is stalling on its implementation in the form of a legislative compulsive-obsessive pattern of behaviour, seen HERE and HERE.

A piecemeal solution seems now the objective as can be seen HERE and HERE

Connected with this subject is the Government assault, [by the Freedom of Information (Amendment) Act 2003] on Freedom of Information principles.

For a history of FOI in Ireland (as of 2003) see HERE.

The Tunnel’s faults will be the news story when there is an accident, possibly a very serious one; whistleblowing is a mechanism to forestall such an event and is valuable for that reason.

Of one thing we can be sure; a government led by Bertie Ahern will not introduce legislative protection for whistleblowers.

(Which is not to say he is alone in his attitude).

human nature is the fundamental nature and substance of humans, as well as the range of human behavior that is believed to be invariant over long periods of time and across very different cultural contexts.

In Jersey a scandal has emerged.

Firstly, there is abundant evidence of serious child abuse in Haut de la Garenne children’s home. Human remains have been found in the premises.

Secondly, the police are interviewing former child inmates and other witnesses relating to the premises and have made the following statement;

Part of the inquiry will be the fact that a lot of the victims tried to report their assaults but for some reason or another they were not dealt with as they should be,�? he said.

We are looking at allegations that a number of agencies didn’t deal with things as perhaps they should, we are looking at all the agencies.�?

Should we not ask; was the police force one of the agencies?

The police statement is itself misleading. The police investigate crime (we hope); is it a crime to neglect your duty? If it is not, why are the police suggesting that they are investigating “the agencies�?? Is that not a PR stance by the police?

The title of this post is not a reference to the capacity for evil by individual abusers, but the incorrigible tendency for institutions to be corrupted and to pervert their original purpose. In short, there is an appreciable probability that, in any particular case, an institution charged with a purpose will be used to defeat that purpose.

Consider this; in the writer’s experience when the word “independent�? is associated with the title of any institution, it is invariably the case that the institution is not “independent�?.

His liabilities were not at first so apparent, yet they were disastrously real. Beyond the limited scope of his political experience he was “almost unbelievably ill-informed,” as William Allen White put it. His mind was vague and fuzzy. Its quality was revealed in the clogged style of his public addresses, in his choice of turgid and maladroit language (“non-involvement” in European affairs, “adhesion” to a treaty), and in his frequent attacks of suffix trouble (“normalcy” for normality, “betrothment” for betrothal).�?

They also resemble each other in their resort to companions whom it would be better to avoid, given the readiness to offer, and in the case of Bertie Ahern and Harding, to accept, “political donations for personal use�?.

In the case of Jess Smith, the right hand man for Harding’s Attorney General, Daugherty, he set a fish bowl on a table in the centre of an hotel room and secretly watched from the next room while “friends�? of the Administration entered the room and left money in the bowl.

Bertie’s friends, in one aspect, belong to the Harding era; they attack the Mahon Tribunal and its counsel without regard for the fact that the Tribunal and its counsel are doing their jobs and the stink is from the material uncovered and not from the methods of discovery. The unarticulated premise in 1924 and now, is the determination to defend the status quo. Here is an account of the Harding scandals;

When the oil scandals were first spread across the front pages of the
newspapers, early in 1924, there was a wave of excitement sufficient to
force the resignations of Denby and Daugherty and to bring about the
appointment by the new President, Calvin Coolidge, of special
Government counsel to deal with the oil cases. But the harshest
condemnation on the part of the press and the public was reserved, not
for those who had defrauded the government, but for those who insisted on bringing the facts to light. Senator Walsh, who led the investigation of the oil scandals, and Senator Wheeler, who investigated the Department of justice, were called by the New York Tribune “the Montana scandalmongers.” The New York Evening Post called them mud-gunners.” The New York Times, despite its Democratic leanings, called them “assassins of character.” In these and other newspapers throughout the country one read of the “Democratic lynching-bee” and “poison-tongued partisanship, pure malice, and twittering hysteria,” and the inquiries were called “in plain words, contemptible and disgusting.”
Newspaper-readers echoed these amiable sentiments. Substantial business men solemnly informed one another that mistakes might have been made but that it was unpatriotic to condemn them and thus to “cast discredit on the Government,” and that those who insisted on probing them to the bottom were “nothing better than Bolsheviki.” One of the leading super-patriots of the land, Fred R. Marvin of the Key Men of America, said the whole oil scandal was the result of “a gigantic international conspiracy . . . of the internationalists, or shall we call them socialists and communists?” A commuter riding daily to New York from his suburb at this period observed that on the seven-o’clock train there was some indignation at the scandals, but that on the eight-o’clock train there was only indignation at their exposure and that on the nine-o’clock train they were not even mentioned. When, a few months later, John W. Davis, campaigning for the Presidency on the Democratic ticket, made political capital of the Harding scandals, the opinion of the majority seemed to be that what he said was in bad taste, and Davis was snowed under at the polls. The fact was that any relentless investigation of the scandals threatened to disturb, if only slightly, the status quo, and disturbance of the status quo was the last thing that the dominant business class or the country at large wanted.�?

Bertie’s friends are particularly brazen in claiming “unfair procedures�? on the part of the Tribunal. Of what do they think cross-examination consists? Do they think counsel should write down his questions and give advance notice of them in that format? And not deviate from the script?

In “The Art of Cross-Examination�? by Francis L. Wellman the author records the cross-examination, in 1911, of Congressman Foelker by Max Steuer in The People v Gardner. Gardner was accused of offering bribes to New York State politicians and in particular to then State Senator Foelker, to vote against a proposal to ban racetrack betting. Foelker testified that Gardner offered him $3,000 in a private room on a train from Albany to New York to vote against the proposal.

Steuer cross-examined;

STEUER: Parlez-vous Francais?

FOELKER: What did you say?

STEUER: Parlez-vous Francais?

FOELKER: I don’t know what you are getting at.

STEUER: It seems to me that you should at least be able to say oui, in view of the fact that you passed an examination in French with a grade of one hundred per cent. You recall taking the Regents’ examination so as to qualify for the Bar examination?

Steuer went on to explore the oddities of Foelker’s qualification to practice law. Foelker had passed an examination in logarithms and advanced algebra with a grade of 95%; he could not say what a logarithm was. He had passed an examination in syntax with a grade of 98%; he could not define syntax. He could not recall where he had sat his Regents’ examination. He did not recall what kind of building it was or where it was located. He was sure he had never taken an examination in French and could not account for the Regents’ record that he had passed French with a grade of 100%. He admitted he had never studied logarithms or advanced algebra. He could not account for the terrible mistake of the Regents in giving him such high percentages in subjects in which he had never passed an examination. He could not account for the fact that his examination papers were missing from the records in Albany but he certainly had nothing to do with their disappearance.

He admitted that he received $2,500 from a man who had a bill pending in the legislature for the sprinkling of the streets and, that he, Foelker, had voted in favour of the bill and the man later received the contract for the sprinkling of the streets. His explanation for the receipt of the cheque was that the man sent it to him as a campaign contribution. It was of course true that the man did not live in Brooklyn where Foelker was a candidate nor could he distinctly remember that he had ever met the man, but he accepted campaign contributions, no matter from whom they came, without inquiry, because that was the custom among members of the legislature.